Respondent’s Defenses: Retroactivity and Habeas Corpus

Respondents have an opportunity to contend a habeas corpus claim. One way they might do this is through retroactivity. Learn more here.

The respondent, in its return, may contend that a claim in the habeas petition rests on a court decision—a new rule—that does not enjoy retroactive application. Hence, the claim should get dismissed pursuant to Practice Book §§ 23-29(5), 23-30(b), 23-34 and/or 23-37.

Retroactivity Test

The test for determining whether a rule is new and, if so, whether it is applied retroactively, is set forth in Teague v. Lane, 489 U.S. 288, 311-16 (1989). See Thiersaint v. Commissioner, 316 Conn. 89, 112 (2015) (So Teague framework adopted for determinations under Connecticut law).

Then, under Teague, the court “must [first] ascertain the legal land-scape” as it existed at the time the petitioner’s conviction became final and, “ask whether the [United States] [c]onstitution, as interpreted by the precedent then existing, compels the rule…That is, the court must decide whether the rule is actually new.” (Citation omitted; internal quotation marks omitted). Also view Beard v. Banks, 542 U.S. 406, 411 [] (2004). A constitutional rule is “new” for purposes of Teague, “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” (Internal quotation marks omitted). In addition, view Thiersaint v. Commissioner, supra, 103.

Also, with two exceptions, a new rule will not apply retroactively to cases on collateral review. Teague v. Lane, supra, 489 U.S. 311-13.

Substantive Exception

First, if the new rule is “substantive,” that is, if the rule, “places certain kinds of primary, private conduct beyond the power of the criminal law- making authority to proscribe”; (Internal quotation marks omitted). Thiersaint v. Commissioner, 316 Conn. 108 n.8; it must apply retroactively. “Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.” (Internal quotation marks omitted). Schriro v. Summerlin, 542 U.S. 348, 352 [](2004).

Procedural Exception

Then, if the new rule is procedural, it applies retroactively if it is, “a watershed [rule] of criminal procedure…implicit in the concept of ordered liberty”; (citation omitted; internal question marks omitted.) Beard v. Banks, 542 U.S. 417; meaning that it, “implicat[es] the fundamental fairness and accuracy of [a] criminal proceeding.” (Internal quotation marks omitted). Id.; see also Sawyer v. Smith, 497 U.S. 227, 242 [] (1990)(rule is watershed when it improves accuracy and, “alter[s] our under-standing of the bedrock procedural elements essential to the fairness of a proceeding” [emphasis omitted; internal quotation marks omitted]), quoting Teague v. Lane , 489 U.S. 311.

Watershed rules of criminal procedure include those that, “raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” Schriro v. Summerlin, 542 U.S. 352. The United States Supreme Court has narrowly construed this second exception and, in the twenty-five years since Teague was decided, has yet to con-clued that a new rule qualifies as watershed. See Id. (class of watershed rules of criminal procedure “is extremely narrow, and it is unlikely that any…ha[s] yet to emerge” [internal quotation marks omitted]); State v. Mares, 2014 WY 126, 335 P. 3d 487, 502 (Wyo. 2014)(“[t]he [United States] Supreme Court has found no watershed rules…since it adopted Teague” [internal quotation marks omitted]).

Federal Intrusion

Also, Casiano v. Commissioner, 317 Conn. at 62-63. In that the Teague analysis was designed to, “minimiz[e] federal intrusion into state criminal proceedings[,]” state courts—including Connecticut state courts—are “free to ‘apply the Teague analysis more liberally than the United States Supreme Court would otherwise apply it where a particular state interest is better served by a broader retroactivity ruling.’” (Citations omitted) Casiano, 317 Conn. at 64; see Theirsaint v. Commissioner, 316 Conn. at 110 (Also, “states are not bound by federal law when determining whether a new rule applies retroactively in a state collateral proceeding”); see also Luurtsema v. Commissioner, 299 Conn. 740, 753 n.14 (2011).

In addition, the issue of retroactivity has recently been before the Connecticut Supreme Court and United States Supreme Court. For example, in Thiersaint v. Commissioner, supra, 316 Conn. 89, the Connecticut Supreme Court held that as a matter of Connecticut law, the United States Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356, 364-69 (2010)(Also, adequate assistance of counsel requires that defendant be informed of the immigration consequences of the plea), is not retroactive to cases on collateral view. Thiersaint, 316 Conn. at 93, 106-24.

Connecticut Law

In addition, in Casino v. Commissioner, supra, 317 Conn. 52, the Connecticut Supreme Court held that as a matter of Connecticut law, the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. , , 132 S.Ct. 2455, 2463-64, 2469 (2012)(In addition, sentencing schemes that preclude consideration of youthful age and adolescence because life imprisonment without the possibility of parole is mandatory for juvenile homicide offenders violates the 8^th Amendment), is a watershed rule of criminal procedure that is retroactive in cases on collateral review. Casiano, 317 Conn. at 62, 61-71. In addition, recently, in Montgomery v. Louisiana, 577 U.S. , No. 14-280 (Jan. 27, 2016), the United States Supreme Court held that Miller’s prohibition announced a new substantive rule that, under the federal constitution, is retroactive in cases on state collateral https://ruanelivestg.wpengine.com/ct-criminal-lawyer/domestic-violence/lawyers-court/evidentiary-hearings/review.

Also, other Connecticut Supreme Court cases that have considered the issue of retroactivity include State v. Payne, 303 Conn. 538, 550 n.10 (2012) (In addition, Teague claims retroactivity holding inapposite because new rule of law is procedural); also see Duperry v. Solnit, 261 Conn. 309, 322 (2002)(habeas court improperly declared and applied new constitutional rule in collateral proceeding in contravention of principle enunciated in Teague); then see Johnson v. Warden , 218 Conn. 791, 796-98 (1991)(habeas court improperly applied Teague retroactivity holding to new nonconstitutional rule of criminal procedure); finally see Garcia v. Commissioner, 147 Conn. App. 669, 677 (2014)(new procedural rule not retroactive under Teague).

Reply

Accordingly, in the reply, see Practice Book §§ 23-31 and 23-35(c), habeas counsel must respond to any assertion that the decisional law the petitioner relies upon constitutes a new rule that does not enjoy retroactive application. Here, research is paramount. Habeas counsel must attempt to show either that the rule is not new (because it is dictated by existing precedent) or that one of Teague’s exceptions apply. Also, if the second exception appears applicable this should be done by explaining how the rule enhances the accuracy of convictions, by offering analogies, and by citing supportive decisions in other states. So, habeas counsel also should emphasize that Teague can be liberally applied as a matter of Connecticut law.